Commentary: Secretive Bans on Afghan Firms Hinder Progress

Sep. 25, 2013 - 03:03PM
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Afghan companies are being blacklisted from working for forces in Afghanistan without notice and without being advised of the justification for the debarment. Moreover, there is no process for challenging these decisions. US citizens are being swept up by this approach, since many Afghan companies are owned by Americans.

After more than 11 years, the US is winding down it presence in Afghanistan. Troops are being withdrawn but, because of the high cost of transportation, we will leave behind substantial quantities of equipment.

Hopefully, more is being left behind in Afghanistan than equipment. It should be a US goal to leave Afghans with a new appreciation for the benefits of the rule of law and due process, and how these values can lead to a more prosperous Afghanistan.

Unfortunately, the US has adopted de facto debarment practices in Afghanistan that obstruct this goal.

These practices are in sharp contrast with standard debarment and suspension procedures, in which principles of fundamental fairness are required and followed. Under normal procedures, contractors are given notice specifying the reasons for the action, adequate time to respond and the right of appeal. This time-tested procedure, readily adaptable to an operational theater, safeguards the US government’s interests in a manner that exemplifies American values of due process, rule of law, transparency and plain dealing.

In Afghanistan, one of the principal blacklisting mechanisms goes by the designation “C2X Reject,” or simply “C2X.” The action is taken within US Forces-Afghanistan, not through contracting commands or channels, based on information contained in classified reporting. No reason or recourse is given. Little is known about how these decisions are made or by whom. Nothing is known about quality assurance or reviews in a counterinsurgency environment in which misreporting to settle scores is endemic.

The effect of C2X frequently is economically fatal to Afghan firms, whether US- or Afghan-owned, that have faithfully served the US and the coalition.

The purposes of C2X are to safeguard US and allied forces, and to prevent American taxpayer dollars from falling into the hands of bad actors — most often, corrupt host nation officials. However, the apparently summary manner in which the C2X designation is given ultimately does a disservice to these goals by rolling up the good with the bad, the well-performing with the nefarious, with no recourse.

The simple addition of notification, an opportunity to be heard and to appeal, could readily be done in theater. A well-prescribed, rules-based peer- and command-reviewed finding of “imminent threat” to friendly forces and/or intelligence “sources and methods,” with the right of appeal through properly cleared legal counsel, would preserve the inherent authority and duty of commanders to protect their troops, as well as the government’s national security interests.

C2X raises many disturbing questions, among them:

■What protections are in place to prevent this blacklisting from being manipulated by a contractor’s competitors or others seeking to settle a personal, political or commercial score?

■Should the US provide assistance to loyal contractors who are more interested than anyone in ridding their business activities of force-protection deficiencies?

■Should contractors be left in the dark about their supposed deficiencies, and left to live with these deficiencies against their interests?

■Are C2X and similar blacklisting practices harming the coalition’s ability to distribute fuel, food and other supplies to operating bases and to secure those bases?

■Is this practice contributing to counterproductive and otherwise harmful animosity toward the US and its allies in Afghanistan?

The situation warrants the urgent attention of US officials interested in a successful outcome in Afghanistan. Loyal and reliable contractors have gone bankrupt and others have given up operations in Afghanistan because of C2X blacklisting. The US is being blamed for summary debarment that prevents contractors from being able to pay their Afghan employees and encourages animosity against the US.

Finally, C2X runs counter to American values, interests and goals in Afghanistan. We can and must do better.

D.E. Wilson Jr., a former White House and Treasury Department official who is a partner with Venable LLP in Washington; and Ward E. Scott II, a retired US Marine and managing partner of Scott Kakar Advocates LLP, a commercial law firm based in Kabul. Scott and Wilson represent a number of ISAF and US contractors active in Afghanistan.